HC Deb 08 May 1850 vol 110 cc1261-71

Order for Second Reading read.

MR. C. ANSTEY

, in moving the second reading of this Bill, said that he had received a number of suggestions for the amendment of the measure, and that, if he should succeed in having it read a second time, as he hoped he should, he intended to move that it be committed pro formâ, with the view of introducing several of these amendments, none of which, however, would affect the principle of the Bill. He begged to explain that the Bill had been prepared in deference to the report of the Committee which sat on the subject last Session, and of which he was chairman. It was not a Bill which, in his individual capacity, he would hare proposed as absolutely the best, but he believed it was the best which the state of the law permitted, and the only one there was any chance of carrying under present circumstances. The report to which he had referred, after enumerating the Acts at present in force for the regulation of the Irish fisheries and navigation of Ireland, pointed out the chief deficiencies in them which required to be remedied by fresh legislation. The principal of these it traced to the ambiguity of phraseology with regard to the definition of what were public and private rights. This difficulty he proposed to remove by the present Bill. Another difficulty pointed out by the Committee was the want of sufficient penalties to enforce the provisions of the Act of 1842; the maximum penalty was not high enough to operate as an intimidation in some cases, and there was no minimum penalty at all to meet other cases. The Scotch law on the subject, which had been found to act most successfully, comprehended a maximum penalty, adequate to every purpose, and a minimum penalty; and he proposed the adoption of similar provisions in his own Bill. The Act of 1842 had repealed all the Acts which had been passed from time to time by the Parliaments of Ireland for the regulation of weirs, substituting only some provisions which, being altogether general and uniform in their nature, did not meet the circumstances of particular localities; and the result had been endless difficulties in the administration of justice respecting those obstructions. The Committee attributed the decline of fisheries and the decrease of fish in Ireland greatly to the solid weirs across fresh-water rivers, and proposed their abatement, giving compensation to the owners of such of them as could be proved to be legal weirs; and this recommendation be had adopted. The Committee further recommended that, for the settlement of disputes between parties, and between individuals and the public, a Commission should be appointed, permanent or otherwise, of the same character with that so satisfactorily established in England for the adjustment of tithes; and he had accordingly transcribed from the English Tithe Act, with merely the necessary alterations, the clauses which bore on the subject. He proposed to leave to the existing tribunals the powers which the Act of 1842 gave them in relation to prosecutions, the commission he contemplated having the power to act without any prosecution previously instituted. Mill weirs would not be affected by the Bill beyond the extent to which they were affected by the existing law. The Board of Works, which at present bad the superintendence of fisheries in Ireland, had neither the leisure nor the staff adequate to the due execution of that duty. The present amount allowed for their superintendence was only 1,200l. per annum—an amount altogether below the requirements of so important a charge; and the Govern- ment tacitly admitted as much by expending upon the Scottish fisheries in some years not less than 14,000l. He did not ask that, because injustice was done to Ireland in this respect, justice should not be done to Scotland; what he desired was, that equal justice should be done to Ireland. Certain it was, that unless this justice was done, an industry that might be so beneficial to Ireland, and which was so intimately connected with the supply of food to her people, would wholly perish. For himself, he should prefer the re-enactment for all Ireland of the repealed Act of Henry VIII., which placed the fisheries in the charge of the mayors and other authorities in the various localities. But that would be objected to by the Government, and he was obliged to content himself with the machinery of the Act of 1842. It had been said that this Bill would interfere with private rights, but that statement he denied. It would provide, in a cheap and summary method, for the protection of public rights, and for the establishment of private rights, where such rights existed. If the House assented to the second reading of the Bill, he would be ready, before it went into Committee, to consider any suggestions that might be made to him for the amendcment of the measure, his simple object being to do justice to all classes.

Motion made, and Question proposed, "That the Bill be now read a Second Time."

MR. CONOLLY

was not averse to some amendment of the present law on this subject, but he could not consent to the system proposed by this measure. The powers proposed to be conferred on the commissioners to be appointed under the Bill, were, in his opinion, as unconstitutional as they were unprecedented. He did not deny the necessity of some legislative interference with regard to fisheries, and was ready to promote, as far as was in his power, any salutary legislation; but he protested against any proposal of a tyrannical or oppressive character, especially when it invaded the rights of private individuals, who were utterly unable to defend themselves. The hon. and learned Member for Youghal had claimed great credit for bringing this measure forward; he had held himself up as the protector of the poor, and had said that the Bill would place food within the reach of people who were now debarred from it by monopoly. He (Mr. Conolly) believed, however, that if this measure, in its present form, be- came law, its effect would be to deprive of employment thousands of persons in Ireland. Some clauses of the Bill provided for the re-enactment of old laws, and to those he had no objection; but many of the new clauses were of a most tyrannical and unconstitutional nature. He complained of the inquisitorial powers which would be conferred upon the commissioners by the 10th clause, which gave them authority to inquire into details connected with the working of the fisheries. He denounced also the 60th and 68th clauses, empowering the commissioners to adjudicate upon complaints; and several other clauses of the Bill were most objectionable on account of the extensive and unconstitutional powers which they conferred upon the commissioners. One of the clauses provided that, under certain circumstances, persons should not be allowed to fish their own fisheries without permission in writing from the commissioners. Clause 71 empowered the commissioners to settle contested questions of title—questions upon which the judgments of the highest legal authorities had been over and over again reversed. Was it not monstrous that questions of such vast importance should be determined by a commission of three men, who might probably be wholly incompetent to give a legal opinion on such a subject? He thought the House would agree with him that this clause was altogether incompatible with the spirit of English jurisprudence. And he was sure the House would also agree with him that property in fisheries deserved the attention of Parliament as well as any other species of property; he confidently hoped, therefore, that they would see his objections to the Bill before them in a just light, and amongst those objections he might mention this, that when the commissioners under the Bill came to adjudicate upon any point, they were themselves the persons to confirm and carry out their own decisions. Then, as to the penalties which were imposed for contravening the proposed statute, there were two classes of persons liable, one of whom had nothing whatever to do with the matter, and very undue facilities were given in suing for the penalties—even the death of the party sued did not put an end to the suit, for his representatives would still remain liable. Further, the principle on which the preamble of the Bill had been founded, was a principle directly in opposition to the recommendations of that Committee over which the hon. and learned Gentleman himself presided, though the House had been told that the Bill before them was framed in exact accordance with the report of the Committee. Again, he objected to the measure under consideration on the ground that it was calculated to set up rights which yet had no existence, rather than to defend and fortify rights which were in being. It was also not unworthy of observation that the right to several fisheries in Ireland was now enjoyed by prescription; that those fisheries had always been possessed and sold like any other property. He hoped, then, that the House would meet those extraordinary enactments in the manner which the real necessities of the case seemed to require; and that they would not give their sanction to such an unconstitutional and tyrannical piece of legislation. He should give the Bill his decided opposition.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months,"

Question put, "That the word 'now' stand part of the Question."

MR. SCULLY

rose to support the Amendment on other grounds than even those which had already been put forward. He was sure that every one acquainted with Ireland would be ready to admit that the measure was of a nature likely to injure other interests in Ireland besides those which had been already referred to; he alluded more particularly to the mill interest; and he thought that anything which affected the millers ought to be received with much caution. The commissioners created under the Bill might sweep away all the weirs—they might interfere to almost any extent. In his opinion a short Act, consisting of only three or four clauses, might easily be introduced, amending the Act of 1842, so as to remedy many of the evils at present complained of. As to the destruction of fish, there was every reason to believe that that took place less frequently at the mouths of rivers than higher up, where the spawn and the young fish were not properly preserved. Sufficient time had not yet been given to test the working of the old Act, and he had received letters stating that the conservators had been of the greatest service in preventing the destruction of spawn and fry. It would be better to withdraw the Bill, and to bring in a short simple Act, which would meet all objections.

LORD NAAS

said, there could be no doubt the opinion of the Committee last year was, that the state of the law in Ireland relating to fisheries was so contradictory, that a consolidation of the various Fishery Acts Was absolutely necessary. As every clause of the present Bill, with some few exceptions, had such a consolidation in view, the House would be only acting in accordance with the views of their Committee in allowing the second reading. With regard to the objection that the commissioners would be vested with too ranch power, he could only say that the Commit tee thought the commissioners should at least have the power of enforcing legal decisions obtained from courts of justice. The great evil complained of was, that in many cases weirs and engines which had by decisions in courts of law been declared illegal, had been re-erected, and were now in full operation. The milling interest of Ireland was much more important than the fishery interest, and no one could be more anxious than he was to protect it; but he could not admit the Bill would operate prejudicially with regard to the mills on fishing rivers. So far from wishing to support any mea sure that would interfere in the slightest degree with that branch of industry, he (Lord Naas) was prepared to consider in Committee, whether any further advantages might not be offered to that important interest. He deeply regretted, that any misunderstanding on this point should exist; and he was sure that if this Bill was allowed to go into Committee, the millers of Ireland would find that the promoters of the measure were anxious to do all in their power to further their wishes. He hoped they would consent to the second reading, and then refer the Bill to a Select Committee, which was the only tribunal that could do justice and satisfy all parties.

COLONEL DUNNE

would support the Bill: he said there was a pressing and immediate necessity for some measure to consolidate the existing laws, and prevent the confusion of conflicting decisions. The right hon. Baronet the Secretary for Ireland, on bringing in what was commonly called "The Rod Act" last year, admitted that further legislation was necessary, and it was to be hoped he would lend his assistance to the present measure. He (Colonel Dunne) objected to interference with vested rights in Ireland, but at the same time did not wish to see those rights unnecessarily extended, and the rights of the public diminished. The Bill before the House interfered less with the milling interest than any former measure, and the House ought at least to allow a Committee to decide upon it.

MR. NAPIER

said, the reason he objected to sending the Bill to a Committee was, that what was good in it was not new, and what was new was not good. In 1842 an Act was passed to consolidate the Acts then existing, and to settle the doubts then expressed as to the state of the law. They were now called upon to pass an Act to consolidate laws that had been consolidated already, and to explain doubts which had long ago been set at rest. Was it wise or right before ten years had passed away to sweep off the Statute-book a measure which was calculated to define the state of the law, and thus to revive all the doubts and difficulties which had been settled and determined? They talked of giving a Parliamentary title to property; but if the House acted in that way, any title would be preferable to one resting on an Act of Parliament. People in Ireland had said to him, "For God's sake, do get the Legislature to leave us alone." Their legislation on Irish property was one continual scene of clipping, altering, and changing—consolidating Acts now, explaining them then, then separating them, and then consolidating them all over again—thus continually directing the minds of the people to look to Parliament instead of teaching them to rely on their own exertions. Where were the doubts to be resolved? He knew of none. The Act of 1842 was as plain as words could make it. He had a very great dislike to give extensive powers to commissioners. In Ireland the practice was particularly objectionable, as the exercise of such large and arbitrary authority had an injurious effect on the minds of the people.

MR. W. FAGAN

, in the hope that the Bill now under discussion would be referred to a Select Committee, as suggested by the noble Lord the Member for Kildare, would vote for the second reading, for the purpose of showing his approval of the object the hon. and learned Member for Youghal had in view, namely, to increase and protect salmon fisheries in Ireland—and of expressing his opinion in that manner, that some amended legislation was necessary to preserve these fisheries; and, lastly, for the purpose of testifying his sense of the energy and ability which the hon. and learned Member for Youghal had exhibited, not only in framing the Bill now before the House, but also as Chairman of the Committee of last Session, when he conducted with untiring zeal and perseverance the inquiry into the various questions which came before that Committee. He (Mr. Fagan) must, however, say, that in its present shape he was as much opposed to the Bill as his hon. Friend the Member for Tipperary. It was too cumbrous, in his opinion, to work advantageously; but it should be recollected that the hon. and learned Member for Youghal was not responsible for that. He was obliged by the vote of the Select Committee to embarrass himself by undertaking to consolidate the existing Acts; and here he would say in reply to a remark made by the hon. and learned Member for Dublin University, that the Bill was not a consolidation of the 5th and 6th of Victoria, which was itself a consolidation of former statutes, but it embraced the provisions of six other and distinct Acts which were passed since 1842. But, in consolidating these Acts, the hon. and learned Member for Youghal did himself injustice in adhering too strictly to what he would call the almost unconstitutional provisions of these statutes. It was true that he rather diminished than increased the powers given by these Acts to the Board of Works; but still they were in the present Bill too despotic and indefinite; and his hon. and learned Friend should recollect these powers were, by his Bill, to be given to a new fishery commission and not to the Board of Works, who were under the control of the Treasury, and were responsible in every particular. The Bill also, in its present form, was a Bill of pains and penalties, which, taken in connexion with the despotic powers given to the commissioners, would not be tolerated in Ireland. But before all, and above all, he (Mr. Fagan) was opposed to the clauses which affected the milling interest in Ireland. Milling was almost the only interest now left to that country, and it was his duty in every way in his power to protect and sustain it; and it was because he was persuaded that these clauses would be modified by a Select Committee that he voted for the second reading. The Bill, it should be recollected, made no alteration in the existing law as regarded mill weirs; but these enactments, as the hon. and learned Member for Youghal had stated, were never enforced by the Government—clearly, thereby, showing that they were injurious—and, therefore, he was surprised they were introduced in that Bill in their integrity. He was not, however, sorry it was done, because it will enable Parliament to repeal the existing law in that respect, provided the Bill is allowed to go into Committee. If it is to be rejected on second reading, then the existing enactments relating to mill weirs remained in force, and it is on that account as a friend of the milling interest he was for the second reading in order that in Committee he might get rid of these objectionable provisions. With these exceptions he was in favour of the Bill. Year after year the salmon fisheries in Ireland are diminishing by reason of defective legislation. To increase these fisheries, and thus increase employment to the labouring class occupied in salmon fishery, was his main object in supporting the Bill. It gave greater facilities to the poor man for earning a livelihood, while it diminished the taxation to which he was subject by a late Act, and, at the same time, raised the taxation on the rich weir owners. This appeared to be the chief objection taken to it by the hon. and learned Member for Dublin University, who seemed to be for protecting the rich proprietors; while his hon. and learned Friend the Member for Youghal, by his Bill, was in favour of extending the benefits of a good fishery law to the poor. For these reasons he would support the second reading, reserving for himself the right of objecting to the whole Bill on the third reading, if the provisions to which he referred were not considerably modified and altered.

MR. GROGAN

considered that some measure was necessary; and though he could not support the Bill in its present shape, he thought it should be referred to a Select Committee upstairs, fairly and impartially selected, with ample power to examine and arrange its provisions. That would be the way to have unanimity on the subject, and to ensure the passing of a Bill this Session that would protect the real interests of the country.

MR. S. CRAWFORD

opposed the Bill, which proposed to create three commissioners—a triumvirate—with most arbitrary powers. He referred particularly to the 14th clause, which he considered would place in great danger the interests of the millowners. He felt it his duty to support the Amendment.

MR. O'FLAHERTY

supported the second reading, with a view to have the measure referred to a Select Committee.

SIR W. SOMERVILLE

said, he had always acknowledged the importance of an extension and preservation of the fisheries of Ireland in a national point of view, and he thought the question was one well worthy of the consideration of Parliament. But he had not been able to discover that one single Gentleman who had supported the second reading approved of this Bill. They wished to send it to a Select Committee, but it was with a view to throw out the principal clauses. The opinion had been generally expressed that some further legislation was necessary. But what was the best mode of proceeding? Was it by sending a Bill of 180 clauses to a Select Committee, to be returned by them to this House, or by a withdrawal of the present Bill, and the introduction of another measure containing such provisions as appeared to meet with the approbation of the House? The latter course was, he thought, more convenient, as it was certainly more consistent with Parliamentary usage. He trusted that the hon. and learned Gentleman would withdraw the Bill, because he should with reluctance vote against a Bill containing clauses of which he approved, believing, as he did, also, that some legislation was necessary on this subject. If another Bill such as he had described were introduced, he should have much pleasure in supporting it, so that it might effect those necessary amendments in the law which were required.

MR. M. O'CONNELL

would remind the right hon. Baronet that if he opposed every Bill on which there was a difference of opinion, he would never agree to any Bill. He thought that many of the provisions of this Bill were exceedingly useful; what was wanting in Ireland was to have all the measures on this subject comprised in one Act; this Bill proposed to do so, and with some alteration would effect that object. He should remind the House that they had omitted from their legislation one branch of the fisheries that was open to every man—he alluded to the sea fisheries. He hoped that either the Government or some independent Member of the House would take up the question, and in the course of next Session introduce some measure that would be for the advantage of that great and important branch of their fisheries.

MR. C. ANSTEY

, in reply, stated that he had no objection to the Bill being sent before a Select Committee, but would persist in his Motion for a second reading.

The House divided:—Ayes 37; Noes 197: Majority 160.

List of the AYES.
Arkwright, G. Hutchins, E. J.
Blake, M. J. Lacy, H. C.
Castlereagh, Visct. Lawless, hon. C.
Chatterton, Col. Macnaghten, Sir E.
Dunne, Col. M'Cullagh, W. T.
Ellice, E. M'Taggart, Sir J.
Fagan, W. Mahon, The O'Gorman
Fellowes, E. O'Brien, Sir L.
Forster, M. O'Connell, M.
French, F. O'Connell, M. J.
Frewen, C. H. O'Flaherty, A.
Fuller, A. E. Pechell, Sir G. B.
Grace, O. D. J. Prime, R.
Grogan, E. Rushout, Capt.
Gwyn, H. Stafford, A.
Hall, Sir B. Stanford, J. F.
Hastie, A. Wawn, J. T.
Herbert, H. A. TELLERS.
Hood, Sir A. Anstey, C.
Hornby, J. Naas, Lord.

Words added.

Main Question, as amended, put, and agreed to.

Bill put off for Six Months.